SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO . A

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NANETTE ROSENBAUM , HARLAN ROSENTHAL and MARTIN ROSENBAUM ,

Plaintiffs

- Appellant s ,

v.

HIGHLANDS CONDO ASSOCIATION ,

Defendant

- Respondent.

___________________________________

Submitted February 28 , 2017

- Decided

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New Jersey , Law Division , Bergen County , Docket
No. L

- 5602

- 13.

Michael W. Rosen , attorney for appellants.

Marshall Denneh e y Warner Coleman & Goggin , P.C., attorneys for respondent (Walter F. Kawalec , III , on the brief).

PER CURIAM

Plaintiffs Nanette Rosenbaum , Harlan Rosenthal , and Martin

Rosenbaum appeal the trial court's June 25 , 2015 summary judgment

dismissal of their premises liability claim against defendant

H ighland s Condo Association. Plaintiffs also appeal the court's NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court

. "
A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited

. R .1:36

- 3.

M arch 21 , 20172 A

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September 4 , 2015 order denying plaintiff's motion for

reconsideration. We reverse and remand , finding a genuine issue

of material fact as to whether defendant's conduct breached the

standard o f care.

I.

Viewed in the light most favorable to plaintiffs , Brill v.

Guardian Life Ins

. Co. of Am. , 142 N.J. 520 , 540 (1995) , the facts

are as follows. On November 22 , 2012 , plaintiff Martin Rosenbaum

exited a relative's condominium unit and fell on a driveway outside

the unit. The driveway was maintained by defendant. Martin's

daughter plaintiff Nanette Rosenbaum came to her father's aid and

also fell.

Plaintiffs filed a pr emises liability action against

defendant alleging Martin and Nanette fell due to a " dangerous and

defective condition on the premises ," caused by defendant's

negligent " ownership , operations management , maintenance and

control of the premises. " 1 Plaintiff s alleged Martin and Nanette

fell due to a transitional slope between two driveways that created

a substantial height differential.

After the completion of discovery , defendant moved for

summary judgment arguing plaintiffs could not establish defendant

1 Plaintiffs also alleged a loss of consortium claim on behalf of
N anette's spouse Harlan Rosenthal

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breached its duty to plaintiffs without expert testimony as to how

the slope was dangerous or defective. The court agreed and granted

summary judgment in defendant's favor , concluding plaintiff s '

complaint alleged a design defect that plaintiff was required to

establish with expert testimony.

Plaintiff s fil ed a motion for reconsideration arguing the

court read the complaint too narrowly to allege only a design

defect claim

. Plaintiff s ' counsel argued the complaint alleged a

dange rous condition , the discovery showed defendant was on notice

of the condition , and the court therefore erred in its initial

determination that expert testimony was required. The court denied

plaintiffs' reconsideration motion , finding that " an expert shoul d

be required to talk about whether or not [there was] a dangerous

condition. "

II.

We review a trial court's grant of summary judgment de novo.

Cypress Point Condo. Ass'n v. Adria Towers , L.L.C. , 226 N.J. 403 ,

414 (2016). " [ The ] trial court's interpretation of the law and the

legal consequences that flow from established facts are not

entitled to any special deference. " Manalapan Realty , L.P. v. Twp.

Comm. , 140 N.J. 366 , 378 (1995). Summary judgment is appropriate

where there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. R. 4:46

- 2(c).4 A

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We must " consider whether the competent evidential materials

presented , when viewed in the light most favorable to the non

moving party in consideration of the applicable evidentiary

standard , are sufficient to permit a rational factfinder to resolve

the alleged disputed issue in favor of the non

- moving party. "

Brill , supra , 142 N.J. at 523.

To establish a prima facie case of negligence , a plaintiff

must establish that " a defendant owed a duty of care , the defendant

breached that duty , and injury was proximately caused by the

breach. " Siddons v. Cook , 382 N.J. Super. 1 , 13 (A pp. Div. 2005).

A plaintiff bears the burden to prove negligence , which is never

presumed. Khan v. Singh , 200 N.J. 82 , 91 (2009). " [T]he mere

showing of an accident causing the injuries sued upon is not alone

sufficient to authorize an inference of negligence. " Vander Groef

v. Great Atl. & Pac. Tea Co. , 32 N.J. Super. 365 , 370 (App. Div.

1954) (internal quotation marks omitted).

An owner or possessor of property has a duty to " warn a social

guest of any dangerous conditions of which the owner had ac tual

knowledge and of which the guest is unaware. " Hopkins v. Fox &

Lazo Realtors , 132 N.J. 426 , 434 (1993). Thus , " [o]rdinarily an

injured plaintiff asserting a breach of that duty must prove , as

an element of the cause of action , that the defendant had actual

or constructive knowledge of the dangerous condition that caused5 A

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the accident. " Nisivoccia v. Glass Gardens , Inc. , 175 N.J. 559 ,

563 (2003).

Plaintiffs do not dispute that an expert would be required

if they alleged a design defect. See D'Alessandro v. Hartzel ,

422 N.J. Super. 575 , 5 81 (App. Div. 2011) ( " mere allegations of a

design flaw or construction defect , without some form of

evidentiary support , will not defeat a meritorious motion

for summary judgment " ). Rather , plaintiffs argue an expert was not

required because their complaint does not allege a design defect ,

but instead alleges that defendant main tained a dangerous

condition about which it had actual knowledge.

In the court's oral opinion on defendant's summ ary judgment

motion , the court found , " the fact of the matter is , the

plaintiff [ s] allege[] a design defect. " We disagree. The complaint

does not expressly allege a design defect

. It asserts Martin and

Nanette fell because of a " dangerous and defe ctive condition on

the premises " and they were injured as a result of defendant's

" ownership , management , maintenance and control of the premises. "

P laintiffs' counsel argued they were required only to show a

dangerous condition and notice , plaintiffs " [did not] need experts

to say what's dangerous ," and they were not obligated " to get into

design. "6 A

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The court appears to have concluded plaintiffs alleged a

defective design claim because the court determined the alleged

dangerous condition existed as a result of its design. However ,
the fact that an alleged dangerous condition may have been

constructed in accordance with its original design does not require

that a plaintiff claiming a dangerous condition show that it

resulted from a defective design , or that it deviated from an

applicable standard of construction. See Garafola v. Rosecliff

Realty Co. , 24 N.J. Super. 28 , 39 (App. Div. 1952) (evidence of

" [c]onstruction in accordance with a standard practice or

deviation therefrom " was not required to establish a foreseeable

danger and was " merely one indication of absence or presence of

elements tending to establish negligence " ).

We next consider whether plaintiffs' claim that the slope

constituted a dangerous condition required t he aid of expert

testimony. In determining whether expert testimony is necessary ,

a court must consider " whether the matter to be dealt with is so

esoteric that jurors of common judgment and experience cannot form

a valid judgment as to whether the conduct of the [defendant] was

reasonable. " Davis v. Brickman Landscaping , Ltd. , 219 N.J. 395 ,

4 07 (2014) (quoting Butler v. Acme Mkts. , Inc. , 89 N.J. 270 , 283

(1982))

. In some cases the " jury is not competent to supply the

standard by which to measure the defendant's conduct ," and thus7 A

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the plaintiff must establish the defendant's standard of care and

breach of that standard by presenting expert testimony. Ibid.

( quoting Sanzari v. Rosenfeld , 34 N.J. 128 , 134

- 35 (1961) ) ; s ee ,

e.g. , id. at 408 (expert required to explain fire code provisions

and standards) ; D'Alessandro , supra , 422 N.J. Super. at 582

- 83

(expert required to explain dangerous condition of a step down

into a sunken living room near the entrance because allegations

of a design flaw or construction defect are " so esoteric or

specialized that jurors of common judgment and experiences cannot

form a valid conclusion " ) ; Vander Groef , supra , 32 N.J. Super. at

370 (plaintiff " failed to introduce any evidence that the

construction of a platform 44 inches high without steps or a ladder

was in any way a deviation from standard construction , or that it

was unsafe " ).

Conversely , in cases in which " a layperson's common knowledge

is sufficient to permit a jury to find that the duty of care has

been breached ," an expert is not required. Davis , supra ,

219 N.J. at 408 (quoting Giantonnio v. Taccard , 291 N.J. Super.

31 , 43 (App. Div. 1996)) . In other words , " some hazards are

relatively commonplace and ordinary and do not require the

explanation of experts in order for their danger to be understood

by average persons. " Hopkins , supra , 132 N.J. at 450 (expert not

required to establish dangerous condition of camouflaged step) ;8 A

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see also Scully v. Fitzgerald , 179 N.J. 114 , 127

- 28 (2004) (expert

not required to explain danger of throwing a lit cigarette onto a

pile of papers or other flammable material) ; Campbell v. Hastings ,

348 N.J. Super. 264 , 270

- 71 (App. Div. 2002) (expert not required

to establish danger of unlit sunken foyer) ; Murphy v. Trapani ,

255 N.J. Super. 65 , 74

- 75 (App. Div.) (expert not required to

establish navigational hazard of a deck hung over water and close

to a shared property line) , certif. denied , 130 N.J. 17 (1992) ;

Berger v. Shapiro , 30 N.J. 89 , 101

- 02 (1959) (expert not required

to explain dangerous condition caused by a missing brick in top

step of porch).

Considering the evidence presented here viewed in the light

most favorable to plaintiffs , a rational factfinder could

determine that the sl ope constituted a dangerous condition without

the aid of expert testimony. The photograph showed a substantial

and abrupt step

- down of approximately twelve inches 2 between the

levels of black pavement . The slope from the higher level to the

lower level is severe. The re is no striping showing the end of the

higher level and the beginning of the step

- down to the lower level

.
In her deposition , Nanette testified there was a " significant

2 Plaintiff 's allegation the step

- down is approximately twelve inches is supported by the photograph that was considered by the
court.9 A

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slope " that was " unmarked in any way. " The identical color of the

pavement at both levels created the type of camouflaged step the

Court in Hopkins determined a jury could find constituted a

dangerous condition without the aid of expert testimony. See

Hopkins , supra , 132 N.J. 450

- 51 (finding plaintiff's claim that

two steps were dangerou s because they shared the identical vinyl

covering pattern thereby camouflaging the lower step did not

require expert testimony).

Expert testimony that the slope deviated from standard

practice or applicable buildin g code s could support plaintiff s '

claim , but such evidence was not requi red. See Garafola , supra ,

24 N.J. Super. at 38

- 39 (whether the existence of a tree close to

an amusement park train ride was dangerous was a factual issue for

a jury and evidence of a deviation from stan dard practice was not

required) . There is nothing esoteric about understanding the

danger of a h eight differential between two driveways that was

unmarked in any way and about which defendant had been provided

actual notice

. Thus , we find the alleged dangerous condition

" [does] not require the explanation of experts in order for [its]

danger to be un derstood by average persons. " Hopkins , supra ,

132 N.J. at 450. Alt hough a jury might conclude the circumstances

are insufficient to establish the dangerous condition alleged in

the complaint , " it is their decision to make , and they are fully10 A

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capable of mak ing that decision without the assistance of

experts. " Id. at 451.

Reversed and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.